Conference on Canadian Strategy for the UN GPs Ryerson University, May 8 th 2014 Stéphanie Gervais

Transcription

1 Conference on Canadian Strategy for the UN GPs Ryerson University, May 8 th 2014 Stéphanie Gervais 1

2 Evaluate implementation of UN Guiding Principles in extraterritorial business activities: Promoting the state s duty to protect human rights. Implementation challenges in the mining sector: Intersection of ESCRs and CPRs. Lack of mobility. Pressure by investors to pursue projects. Investors protected against new regulations through investment treaties. Launch arbitration proceedings when states breach treaties. 83% cases of related to extractives & the majority in Latin America. 2

3 9. States should maintain adequate domestic policy space to meet their human rights obligations when pursuing business-related policy objectives with other States, for instance through investment treaties. Commentary [ ] the terms of investment agreements may constrain States from implementing human rights legislation, or put them at risk of binding arbitration if they do so. 3

4 What are the impacts of International Investments Agreements (IIAs) on the fulfillment of the of UN Guiding Principles on Business and Human Rights in the extractive sector of Latin America? Are Canadian Investment Agreements in line with the United Nation s Guiding Principles on Business and Human Rights? 4

5 Ensures changes in domestic law are not applicable to investors (IFC, 2008). Example: Expropriation clauses : Policy has brought additional costs on operations, forcing the company to leave. The UN High Commissioner for Human Rights: could affect States willingness or capacity to introduce new measures to promote and protect human rights (UNESC, 2003). 5

6 Definition: States forego needed legislation that might negatively affect the value of foreign investment, rather than risk potential liability (Gross, 2003). Fear of costs attached to complaints being filed against them by investors. Observed in cases where policies are already set in motion or expressed as an intention by governments. Example: Anti-mining legislation in Indonesia repealed after threats by mining companies of filing suits under the IIAs (Suda, 2005). 6

7 Policy: Moratorium on open-pit mines & reject Environmental Impact Assessment (EIA) to protect the Constitutional provision on right to a healthy environment (Tienhaara, 2010). Arbitration proceedings: Filing suit for sudden changes in policy causing breach of fair treatment of Canada-Costa Rica BIT (Tienhaara, 2010). Government granted extraction permit and later revoked it. Infinito Gold Ltd. seeking award of $1 billion (Newswire, 2013). 7

8 Incorporate human rights language in IIAs: Address intersections between investment and the right to regulate in favor of human rights. Create obligations for investors like impact assessments and mechanisms to enforce obligations. Clarify scope of the expropriation and national treatment clauses: Course of action when states refer to human rights as defense (Suda, 2005). 8

9 Reflect need for investors to assess risks: Creating a certainty over costs incurred by launching of suits. Creation of unified platform: Consolidate claims for predictable interpretation of the law (UNTAD, 2012). Create a treaty interpretation tool: Offer authoritative treaty interpretation to determine types of human rights regulations are a cause for breach (Suda, 2005). 9

10 Hurdles for pro-human rights governments due to the high costs. Contrary impact of IIAs: dissuade states from allocating exploration permits? Enforcement of Calvo Doctrine in UN GPs (Anderson, 2013): Protect sovereign right to regulate in favor of public interest. Require investors to use domestic courts to hear their claims. Withdrawal of investment treaties or treaty freeze (Indonesia, South Africa, Argentina, etc.) Canada should be conscious of GP #9 and ensure that signatory parties for IIAs are retaining adequate policy space to regulate in favor of human rights. 10

11 Send me your questions and comments Investment Treaties and Human Rights: Mining in Latin America, 11